Maris, McLaughlin and Kalodner, Circuit Judges.
Can an enlisted man in the United States Army maintain an action against an Army medical surgeon for alleged malpractice in an operation performed at an Army hospital?
The District Court answered this question in the negative and dismissed the action.*fn1 This appeal followed.
The record discloses that the plaintiff, George S. Bailey, instituted this diversity action in the court below against the defendants Agusto G. DeQuevedo and K. E. Van Buskirk, Army doctors, alleging in his complaint that while he was an Army enlisted man, DeQuevedo negligently left non-dissolving sutures in his abdomen when he operated on him in an Army hospital and that both defendants thereafter negligently failed to take corrective action, necessitating subsequent surgery and removal of a kidney.
The defendants filed a motion to dismiss asserting that (1) the complaint failed to state a cause of action upon which relief could be granted, and (2) the action, insofar as the defendant Van Buskirk was concerned, was barred by res adjudicata by reason of the fact that an earlier similar suit against him had been dismissed on its merits in Bailey v. DeQuevedo, et al., Civil Action No. 62-1235-CC, United States District Court for the Southern District of California, Central Division, aff'd sub nom., Bailey v. Van Buskirk, 345 F.2d 298, (9 Cir. 1965), cert. den. 383 U.S. 948, 86 S. Ct. 1205, 16 L. Ed. 2d 210 (1966).
The court below granted the motion to dismiss as to DeQuevedo on its holding that "a member of the Armed Services is not entitled to maintain an action against a medical doctor, who is a member of the Armed Services, for injury arising out of the acts performed by the doctor within the scope of his military function and duties".*fn2 It dismissed the action as to Van Buskirk on its holding that the dismissal of the plaintiff's suit against him in California on the ground that it failed to state a cause of action upon which relief could be granted was a dismissal on the merits and was therefore res adjudicata.*fn3
It must be noted at this point that the plaintiff has withdrawn his appeal with respect to Van Buskirk.
With respect to his appeal from the dismissal of his action against DeQuevedo, the plaintiff here contends that in the absence of statutory immunity, an enlisted man is entitled to maintain an action founded upon principles of common law liability against an Army physician for medical malpractice.
DeQuevedo contends, in reply, that the policy judgment implicit in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), that a soldier cannot sue the United States under the Federal Tort Claims Act for line of duty negligence, precludes the instant action against him. He cites the statement in Feres that "We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving." 340 U.S. 141, 71 S. Ct. 157. He also points to the fact that two of the three suits decided in Feres charged malpractice on the part of military doctors in military hospitals.
DeQuevedo further urges that the Ninth Circuit, in Bailey v. Van Buskirk, supra, correctly applied the policy judgment in Feres when it affirmed the dismissal of the plaintiff's action with this statement:
"* * * We think the same policy considerations govern here as governed in the Jefferson and Griggs cases in the Feres group, Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152. This is not a tort claims case, but in principle we regard our result as a fortiori.
We are satisfied that while the army medical corps performs mostly a function of service, it nevertheless has a command function over all officers and enlisted men who are admitted to its facilities during the period of their admission. The operations were performed by the medical officers in line of duty. It is not yet within the American legal concept that one soldier may sue another for negligent acts performed in the line of duty. The idea is that an undisciplined army is a mob and he who is ...